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Court of Criminal Appeal 4 August 2020

Gillespie v R

[2020] NSWCCA 186

Sexual offences

Citation: Gillespie v R [2020] NSWCCA 186
Court: NSW Court of Criminal Appeal
Date: 4 August 2020
Judges: Ward JA (with Wilson J and Ierace J agreeing)

Background

The appellant was convicted by a jury in the District Court of New South Wales on eight counts of historical sexual offences against the son of a family friend. The offences, which included indecent assault, buggery, and homosexual intercourse with a minor, were alleged to have occurred between 1982 and 1986 when the complainant was aged between 10 and 14. The appellant was in his early nineties at the time of the appeal.

This was the second trial of the charges; the first was aborted after the jury was discharged. The appellant was convicted on 24 July 2018 and sentenced to an aggregate term of five years' imprisonment with a non-parole period of two and a half years.

The appellant sought both an extension of time and leave to appeal against conviction on four grounds. He did not ultimately press an appeal against sentence.

  • Whether the trial judge erred in refusing to grant an adjournment to allow the attendance of more experienced counsel, and whether the retained counsel's alleged incompetence caused a miscarriage of justice.
  • Whether a miscarriage of justice arose from defence counsel's failure to cross-examine the complainant on a disputed tattoo and alleged collusion with a witness.
  • Whether the trial judge erred in allowing re-examination of the complainant in circumstances where his cross-examination was conducted by video recordings from the first trial.
  • Whether the trial judge erred by failing to direct the jury on the permissible inferences available from the absence of the complainant's mother as a witness (applying the principle in Jones v Dunkel).

Decision

Ground 1: Adjournment refusal and counsel competence. The Court found that the refusal of an adjournment did not produce a miscarriage of justice. Retained counsel (Mr Battley) had appeared at the first trial with senior counsel and was therefore well acquainted with the proceedings. The Court declined to characterise his conduct as incompetent and found that leave to raise this ground should be refused on the basis of inutility. Even if leave were granted, the ground lacked substance.

Ground 2: Failure to cross-examine on the tattoo. The Court held that defence counsel's omission to put the tattoo issue to the complainant in cross-examination did not give rise to a miscarriage of justice. Leave was refused on grounds of inutility, and the ground was found to be without substance in any event.

Ground 3: Re-examination following video cross-examination. The Court rejected the argument that allowing re-examination was unfair because the cross-examination had been conducted using video recordings from the first trial. No objection had been taken at trial, and the Court found no error warranting leave or any resulting miscarriage.

Ground 4: Failure to direct on the mother's absence. The Court accepted the Crown's submission that the complainant's mother played no significant role in the prosecution case and that her absence was readily explicable: she had refused to provide a statement to police, and that refusal was itself placed in evidence before the jury. Applying the principle from Jones v Dunkel as discussed in Ghazal v G10, the rule requiring an inference from an unexplained absence has no application where the failure to call a witness is satisfactorily explained or readily understood. No direction was sought by the defence, even when the trial judge specifically invited submissions during the summing-up.

Orders Made

  • Time for filing the application for leave to appeal extended to 24 April 2020.
  • Application for leave to appeal refused on all grounds.

Key Takeaways

  • In dismissing all four grounds, the Court of Criminal Appeal confirmed that leave to appeal under r 4 of the Criminal Appeal Rules will be refused for inutility where the grounds, even if arguable, are ultimately without substance.
  • A claim of counsel incompetence will not establish a miscarriage of justice merely because counsel expressed self-doubt about their experience; the court examines whether the conduct actually caused a miscarriage, not whether counsel held reservations about their own ability.
  • Where defence counsel has participated in prior proceedings concerning the same charges, the court may draw on that involvement when assessing whether the lawyer was adequately prepared for the subsequent trial.
  • The Jones v Dunkel rule, which permits an inference adverse to a party who fails to call a witness, does not apply where the witness's absence is satisfactorily explained or readily understood. Here, the prosecution was not expected to call the complainant's mother after she had refused to provide a police statement, a fact already before the jury.
  • Failure by the defence to request a direction or raise an objection at trial, particularly when the judge specifically invited submissions, is a relevant consideration when assessing whether any error in the summing-up caused a miscarriage of justice.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Rules (NSW), r 4
- Criminal Procedure Act 1986 (NSW), ss 306J, 306K, Ch 3 Pt 3 Div 3

Cases
- Jones v Dunkel (1959) 101 CLR 298
- Ghazal v G10 (1992) 29 NSWLR 336
- Nudd v The Queen [2006] HCA 9
- Filippou v The Queen (2015) 256 CLR 47
- Fennell v The Queen [2019] HCA 37
- De Silva v The Queen [2019] HCA 48
- Liberato v The Queen (1985) 159 CLR 507
- Azzopardi v The Queen (2001) 205 CLR 50
- Ali v The Queen [2005] HCA 8
- Fox v Percy (2003) 214 CLR 118
- R v Birks (1990) 19 NSWLR 677
- R v Kneebone [1999] NSWCCA 279
- Browne v Dunn (1893) 6 R 67 (HL)
- Aravena v R [2015] NSWCCA 288
- Alkhair v R [2016] NSWCCA 4
- Davis v R [2017] NSWCCA 257
- Moustafa v R [2019] NSWCCA 89